# 14 S.C.R. 263 KAMLESH KUMAR AND ORS v. THE STATE OF JHARKHAND AND ORS

- **Citation:** [2013] 14 S.C.R. 263
- **Court:** Supreme Court of India
- **Decided:** 2013-09-26
- **Case number:** Writ Petition Criminal Nos. 95 & 112 of 2003
- **Bench:** H.L. Gokhale, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-s-c-r-263-kamlesh-kumar-and-ors-v-the-state-of-jharkhand-and-ors-29167
- **Pages:** 34

## Headnote

Criminal Trial ::- . Transfer of trial - AdministrAtive power
A
B
of High Court to effect transfer- Trial ot petitioners uls. 5~ o~
FERA before Magistrate - FERA replaced by FEMA - Full
C
Court of High Court passed resolution transferring the trial
under FERA I FEMA to Special Judge hearing related
Fodder scam cases - State Government issued notification
empowering said Special Judge to the try the case of
petitioners - Transfer of petitioner's trial to the Special Judge
D
- Legality of - Held: Though FERA came to be repealed and
replaced by FEMA, in view of s.49(4) of FEMA, all offences
committed under FERA continued to be governed by the
provisions of FERA, as if that Act had not been repealed -
s. 62 of FERA made the offence uls. 56 of FERA nonE
cognizable - Besides, s.61(1) of FERA stated that 'it shall be
lawful' for the Magistrate to pass the necessary sentence ul
s. 56 of FERA - It does not state that the Magistrate alone is
empowered to pass the necessary sentence, in which case
the proceeding cannot be transferred from his Court - The
F
offence was a non-cognizable one, and therefore it was not
mandatory that it ought to have been tried only by the
Magistrate of the First Class - It cannot be said that the
Magistrate's Court had an exclusive jurisdiction to try the
cases relating to violations of the provisions of FERA, and
those cases could not be transferred to the Special Judge -
G
High Court has power to transfer the cases and appeals u/
s.407 CrPC which is essentially a judicial power - It can also
transfer cases by exercising its administrative power of
263
H
264
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A superintendence available u!Art.227 of the Constitution -
Constitution of India, 1950 - Art. 227 - Foreign Exchange
Regulation Act, 1973- ss. 61and62, and ss.9(1) (a) and (b)
and ss. 56, 64(2) - Foreign Exchange Management Act,
1999 - s.49(4) - Code of Criminal Procedure, 1973 - s.407.
B
Criminal Trial - Trial of petitioners u/s. 56 of FERA before
Magistrate - FERA replaced by FEMA - Transfer of trial
under FERA I FEMA to Special Judge hearing related
Fodder scam cases - Whether right of appeal ava;table to the
C petit'iuriers taken away by such transfer- Held (per Lokur, J.},
No - Petitioners continued to have the right to appeal, but it
w.:1s only the forum that had changed - They could now prefer
appeal from the order of the Special Judge to the High Court
- Litigant neither has a right to appeal to a particular forum
nor to insist on. a particular procedure being followed in his
D case.
Revision - Righ,J of - Held( per Lokur, J.): It cannot be
said that a litigant has a "right" to have an adverse order
revised by a superior court - On the contrary, if there is any
E "n'ght" to revise, it is invested in the superior court - On facts,
trnnsfer of criminal trial from a Magistrate to a Special Judge
did not take away the "procedural facility" of revision available
to the accused-petitioners - It only changed the forum -
Petitioners have no right to choose the forum in which to file
F an appeal or move a petition for revising an interlocutory
order.
One 'K', earlier working as the Director of Animal
Husbandry department, Government of Bihar, was being
prosecuted by the Central Bureau of Investigation (C.B.I.)
G in the Court of Special Judge at Ranchi for conspiracy
to defraud the State Go.vernment. During investigation, it
was realized that 'K' had acquired huge movable as well
as immovable assets in his own name, and in the name
of his children at different places. 'K' and his children
H
KAMLESH KUMAR v. STATE OF JHARKHAND
265
were also therefore prosecuted in the case arising out of A
this investigation.
It was further revealed during the course of
investigation, that petitioners- the children of 'K', had
received huge amounts of Foreign Exchange. It was
8
suspected that these remittances were amounts
arrange-cl by certain persons involved in the animal
husbandry scam in violation of the provisions of the
Forei

## Text

_Characters 0–39,940 of 61,408. This is a partial read: ask again with offset=39940 for what follows._

(2013] 14 S.C.R. 263
KAMLESH KUMAR AND ORS.
v.
THE STATE OF JHARKHAND AND ORS.
(Special Leave Petititon (Crl.) Nos.6219-20 of 2012)
SEPTEMBER 26, 2013
[H.L. GOKHALE AND MADAN B. LOKUR, JJ.]
Criminal Trial ::- . Transfer of trial - AdministrAtive power
A
B
of High Court to effect transfer- Trial ot petitioners uls. 5~ o~
FERA before Magistrate - FERA replaced by FEMA - Full
C
Court of High Court passed resolution transferring the trial
under FERA I FEMA to Special Judge hearing related
Fodder scam cases - State Government issued notification
empowering said Special Judge to the try the case of
petitioners - Transfer of petitioner's trial to the Special Judge
D
- Legality of - Held: Though FERA came to be repealed and
replaced by FEMA, in view of s.49(4) of FEMA, all offences
committed under FERA continued to be governed by the
provisions of FERA, as if that Act had not been repealed -
s. 62 of FERA made the offence uls. 56 of FERA nonE
cognizable - Besides, s.61(1) of FERA stated that 'it shall be
lawful' for the Magistrate to pass the necessary sentence ul
s. 56 of FERA - It does not state that the Magistrate alone is
empowered to pass the necessary sentence, in which case
the proceeding cannot be transferred from his Court - The
F
offence was a non-cognizable one, and therefore it was not
mandatory that it ought to have been tried only by the
Magistrate of the First Class - It cannot be said that the
Magistrate's Court had an exclusive jurisdiction to try the
cases relating to violations of the provisions of FERA, and
those cases could not be transferred to the Special Judge -
G
High Court has power to transfer the cases and appeals u/
s.407 CrPC which is essentially a judicial power - It can also
transfer cases by exercising its administrative power of
263
H
264
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A superintendence available u!Art.227 of the Constitution -
Constitution of India, 1950 - Art. 227 - Foreign Exchange
Regulation Act, 1973- ss. 61and62, and ss.9(1) (a) and (b)
and ss. 56, 64(2) - Foreign Exchange Management Act,
1999 - s.49(4) - Code of Criminal Procedure, 1973 - s.407.
B
Criminal Trial - Trial of petitioners u/s. 56 of FERA before
Magistrate - FERA replaced by FEMA - Transfer of trial
under FERA I FEMA to Special Judge hearing related
Fodder scam cases - Whether right of appeal ava;table to the
C petit'iuriers taken away by such transfer- Held (per Lokur, J.},
No - Petitioners continued to have the right to appeal, but it
w.:1s only the forum that had changed - They could now prefer
appeal from the order of the Special Judge to the High Court
- Litigant neither has a right to appeal to a particular forum
nor to insist on. a particular procedure being followed in his
D case.
Revision - Righ,J of - Held( per Lokur, J.): It cannot be
said that a litigant has a "right" to have an adverse order
revised by a superior court - On the contrary, if there is any
E "n'ght" to revise, it is invested in the superior court - On facts,
trnnsfer of criminal trial from a Magistrate to a Special Judge
did not take away the "procedural facility" of revision available
to the accused-petitioners - It only changed the forum -
Petitioners have no right to choose the forum in which to file
F an appeal or move a petition for revising an interlocutory
order.
One 'K', earlier working as the Director of Animal
Husbandry department, Government of Bihar, was being
prosecuted by the Central Bureau of Investigation (C.B.I.)
G in the Court of Special Judge at Ranchi for conspiracy
to defraud the State Go.vernment. During investigation, it
was realized that 'K' had acquired huge movable as well
as immovable assets in his own name, and in the name
of his children at different places. 'K' and his children
H
KAMLESH KUMAR v. STATE OF JHARKHAND
265
were also therefore prosecuted in the case arising out of A
this investigation.
It was further revealed during the course of
investigation, that petitioners- the children of 'K', had
received huge amounts of Foreign Exchange. It was
8
suspected that these remittances were amounts
arrange-cl by certain persons involved in the animal
husbandry scam in violation of the provisions of the
Foreign Exchange Regulation Act, 1973 (FERA). It was
alleged that they had violated the provisions of Section
C
9(1) (a) and (b) and 64(2) of the FERA, and rendered
themselves liable to be prosecuted under Section 56 of
the said Act.
The Enforcement Director accordingly filed cases
against the petitioners before the Chief Judicial
D
Magistrate Ranchi for taking cognizance under Section
56 of FERA. The Enforcement Director however, realized
that many of the offenders in the FERA cases were also
accused in the cases pending before the Special Judge
in the Fodder scam cases .• and the documents relied upon
E
and the witnesses to be examined were common. The
Director, therefore, wrote to the State Government
seeking to have these cases tried by the same court.
Accordingly, the Law Secretary of the Government of
Jharkhand wrote to the Registrar General of the High
F
Court. In the meanwhile, from 1.6.2000, FERA was
replaced by the Foreign Exchange Management Act, 1999
- FEMA. Though FERA came to be repealed and replaced
by FEMA, in view of Section 49 (4) of FEMA, all offences
committed under FERA continue to be governed by the
G
provisions of FERA, as if that Act had not been repealed.
The Full Court of Jharkhand High Court passed a
resolution on 25.4.2002, to empower the Special Judge,
CBI Animal Husbandry scam cases, to try the cases of
H
26,6
SUPREME COURT REPORTS
(2013] 14 S.C.R.
A FEMA, 1999. Accordingly a notification was issued by the
State of Jharkhand on 17.5.2002, empowering the Special
Judge CBI (AHO Scam cases) to try the cases under
FEMA. The petitioners then filed Criminal Writ Petitions
to quash the notification dated 17 .5.2002 .. The writ
B petitions were dismissed by the High Court and therefore
the present Special Leave Petitions (Criminal).
·c
The Petitioners contended before this Court that the
transfer of appellants' prosecution under FERA I FEMA
from the Magistrate's Court to the Court of the Special
J1Udge was unlawful, since the disputed transfer was
being made to a Court which had no jurisdiction to try
the offence; that for offences for which the petitioners
were being prosecuted under Section 56 of FERA, the
punishment did not exceed 7 years of imprisonment; that
D the punishment being less than 7 years, the case was
triable by the Magistrate of the first class; and the State
Government was therefore, not competent to transfer the
prosecution under Section 56 of FERA from the Court of
Chief Judicial Magistrate to the Court of the Special
E .Judge; and further that this resulted into denial of one
right of appeal to the petitioners. It was also contended,
that the transfer of the cases could not have been
effected by the High Court without following the
procedure laid down under Section 407 of CrPC, and the
F impugned orders of transfer of case were therefore bad
in law.
Dismissing the Special Leave Petitions, the Court
HELD:
G
Per Gokhale, J.
1. The First Schedule to Cr.P.C. deals with the
Classification of Offences. Part-1 thereof deals with the
H t offences under the Indian Penal Code, Part-II deals with
KAMLESH KUMAR v. STATE OF JHARKHAND
267
classification of offences against other laws, which
A
would include offences under laws such as FERA. The
petitioners were being prosecuted under Section 56 of
FERA, wherein the maximum punishment that could be
awarded was up to seven years. The second entry of this
Part-II laid down that such offences were triable by
Magistrate of first Class, provided those offences were
cognizable offences. Section 62 of FERA made the
offence under Section 56 non-cognizable. Besid~s.
Section 61 (1) of FERA stated that 'it shall be lawful' for
B
the Magistrate to pass the necessary sentence under c
Section 56. It does not state that the Magistrate alone is
empowered to pass the necessary sentence, in which
case the proceeding cannot be transferred from his
Court. This provision is not like the one in the case of A.R.
Antu lay where under Section 7(1) of Criminal Law
0
Amendment 1952 Act, the offence was 'triable by special
judge only'. In the instant case it was merely lawful for
the Magistrate to try the offences under Section 61, but
the Court of Magistrate was not a court of exclusive
jurisdiction as in Antulay's case. The offence was a nonE
cognizable one, and therefore it was not mandatory that
F
it ought to have been tried only by the Magistrate of the
First Class. Thus the petitioner could not claim that the
Magistrate had the special jurisdiction .to try the offence,
and that the State could not transfer the case to the
Sessions Judge. In view thereof, it cannot be said that the
Magistrate's Court had an exclusive jurisdiction to try the
cases relating to violations of the provisions of FERA,
and those cases could not be transferred to the Special
Judge. In the present case the accused were common,
many of the witnesses would be common, and so also
G
their evidence. The High Court had administrative power
in such a situation to effect transfer. [Para 17] [283-B-H;
284-A]
1.2. The High Court does have the power to transfer
H
268
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A the cases and appeals under Section 407 Cr.P.C. which
is essentially a judicial power. Section 407 (1)(c) Cr.P.C.
lays down that, where it will tend to the general
convenience of the parties or witnesses, or where it was
expedient for the ends of justice, the High Court could
8 transfer such a case for trial to a Court of Sessions. That
do1es not mean that the High Court cannot transfer cases
by
exercising
its
administrative
power
of
suiperintendence which is available to it under Article 227
of the Constitution of India. [Para 19] [284-G-H; 285-A]
C
A.R. Antulay v. R.S. Nayak and Anr. 1988 (2) SCC 602:
D
1988 (1) Suppl. SCR 1 - held inapplicable.
A.S. lmpex Limited & Ors. v. Delhi High Court & Ors. 107
(2003) Delhi Law Times 734 - overruled.
Ranvir Yadav v. State of Bihar 1995 (4) SCC 392: 1995
(2) SCR 826 - relied on.
Pranab Kumar Mitra v. The State of West Bengal and
Anr. 1959 Supp 1 SCR 63; Suraj Prakash Seth and another
E
v. R.K. Gumani and another 1975 Mh.L.J 588 and Mahender
Singh v. High Court of Delhi and Anr. 2009 (151) Company
Cases 485 (Delhi) - referred to.
F
Per Lokur, J. [Concurring]
HELD:
Validity of the notification of transfer (to the Special
Judge)
G
1. Insofar as the present case is concerned, it is
apparent from a reading of Section 56 of the FERA as also
Section ~1 of the FERA that exclusive jurisdiction has not
been conferred on the Magistrate to try cases relating to
a violation of the provisions of the FERA. Absent
H jurisdictional exclusivity, the principle of law laid down in
KAMLESH KUMAR v. STATE OF JHARKHAND
269
Antu/ay is not applicable and the Special Judge could
A
have been conferred jurisdiction to try the case against
the petitioners. [Para 13] [290-G-H]
A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602: 1988 (1)
Suppl. SCR 1 - held inapplicable.
B
R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183: 1984 (2)
SCR 495 and Prem Chand Garg v. Excise Commissioner
1963 Supp (1) SCR 885 - referred to.
Right of appeal
2.1. The right of appeal available to the petitioners in
c
the present case is not taken away by transferring the
case from the Magistrate to the Special Judge. The
petitioners continue to have the right to appeal, but it is
0
only the forum that has changed. They can now prefer
an appeal from the order of the Special Judge to the High
Court. Therefore, it is not as if the petitioners are denuded
of any right to agitate their cause in a superior forum by
the transfer of the case to the Special Judge. [Para 15]
[291-C-D]
E
2.2. It is now. well settled that a litigant has neither a
right to appeal to a particular forum nor to insist on a
particular procedure being followed in his case. It cannot
be seriously urged that the petitioners were prejudiced
by a change of the appellate forum. [Paras 16, 20] [291E; 292-F]
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh
1953 SCR 118 - followed.
Union of India v. Sukumar Pyne AIR 1966 SC 1206:1966
SCR 34: Maria Cristina De Souza Sodder v. Amria Zurana
Pereira Pinto (1979) 1 SCC 92; T. Barai v. Henry Ah Hoe
(1983) 1 SCC 177: 1983 (1) SCR 905 and Mis Rai Bahadur
F
G
H
270
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A Seth Shreeram Durgaprasad v. Director of Enforcement
(1987) 3 sec 27: 1987 (3) SCR 137 - retied on.
Procedure for transfer:
3. In the present case, the High Court could have
B exercised its judicial power of transfer under Section 407
of the Code (if called upon to do so) and it could also
have exercised its administrative power of transfer under
Article 227 of the Constitution, which it did, as is evident
from the letter dated 6th May 2002 issued by the Registrar
C General of the High Court of Jharkhand to the Secretary
to the Government, Law (Judi.) Department, Government
of Jharkhand. The fact that for an administrative
L.';:.-, .. •,
exigency, the High Court decided to exercise -its plenary
administrative power does not per se lead to the
D conclusion that the transfer of the case from the
Magistrate to the Special Judge was unlawful. The leg_ality
of the action cannot be called in question in this case
since no prejudice has been caused to the petitioners by
E
such a transfer. [Para 24] [293-D-F]
Ranbir Yadav v. State of Bihar (1995) 4 SCC 392: 1995
(2) SCR 826 - relied on.
Right of revision
F
4. It cannot be said that a litigant has a "right" to have
an adverse order revised by a superior court. On the
contrary, if there i's any "right" to revise, it is invested in
the superior court. While the revisional power of a
superior court actually enables it to correct a grave error,
G the existence of that power does not confer any
corresponding right on a litigant. This is the reason why,
in a given case, a superior court may decline to exercise
its power of revision, if the facts and circumstances of the
case do not warrant the exercise of its discretion. This is
1-1
also the reason why it is felicitously stated that a revision
KAMLESH KUMAR v. STATE OF JHARKHAND
271
is not a right but only a "procedural facility" available to
A
a party. If the matter is looked at in this light, the transfer
of a case from a Magistrate to a Special Judge does not
take away this procedural facility available to the
petitioners. It only changes the forum and as already held
above, the petitioners have no right to choose the forum
B
in which to file an appeal or move a petition for revising
an interlocutory order. [Paras 27, 28] [294-E-H; 295-A]
A.S. lmpex Ltd. v. Delhi High Court 107 (2003) DLT 734
- overruled.
Mahender Singh v. High Court of Delhi (2009) 151
Comp Cas 485 (Delhi) and N.G. Sheth v. C.8.1. 151 (2008)
DLT 89 - approved.
c
Pranab Kumar Mitra v. State of West Bengal 1959(1)
0
Suppl. SCR 63; Akalu Ahir v. Ramdeo Ram (1973) 2 SCC
583: 1974 (1) SCR 130 - relied on.
Case Law Reference:
In the judgment delivered b~ Gokhale, J.
E
1988 (1) Suppl. SCR 1
distinguished
Para 10(i)
107 (2003) DLT 734
overruled
Para 10(ii)
1995 (2) SCR 826
relied on
Para 13
F
1959 Supp 1 SCR 63
referred to
Para 15
1975 Mh.L.J 588
referred to
Para 16
2009 (151) CC 485 (Delhi) referred to
Para 18
In the judgment delivered b~ Lokur, J.
G
1988 (1) Suppl. SCR 1
held inapplicable
Para 4
1984 (2) SCR 495
referred to
Para 5
1963 Supp (1) SCR 885
referred to
Para 9
H
A
B
c
[)
E
F
272
SUPREME COURT REPORTS
[~~013] 14 S.C.R.
1953 SCR 118
followed
Para 16
1966 SCR 34
relied on
Para 17
(1979) 1 sec 92
,
relied on
Para 18
1983 (1) SCR 905
relied on
Para 19
1987 (3) SCR 137
relied on
Para 19
1995 (2) SCR 826
relied on
Para 23
1959(1) Suppl. SCR 63
relied on
Para 26
1974 (1) SCR 130
relied on
Para 27
107 (2003) DLT 734
overruled
Para 29
(2009) 151 Comp
approved
Para 31
Cas 485 (Delhi)
151 (2008) .DLT 89
approved
Para 31
CRIMINAL APPELLATE JURISDICTION: SLP (Criminal)
Nos. 6219-20 of 2012.
From the Judgment & Order dated 19.07.2012 of the High
Court of Jharkhand at Ranchi in Writ Petition Criminal Nos. 95
& 112 of 2003.
Shekhar Naphade, Anil Kumar, A. Rohan Singh, Boboy
Postangbam, Naueen Kumar, D.P. Singh, Anil Kumar MishraI for the Petitioners.
P.P. Malhotra, ASG, M.R. Calla, Rarijana Narayan, Yasir
Rauf, B. Krishna Prasad, Siddhartha Panda, Ashok Mathur,
Partiksh, Jayesh Gaurav, Gopal Prasad for the Respondents.
G
The Judgments of the Court was delivered by
H.L. GOKHALE, J. 1. These Special Leave Petitions
(Criminal) seek to challenge the judgment and order dated
19.7.2012, whereby a Learned Single Judge of the Jharkhand
H High Court dismissed the two Writ Petitions bearing Nos. Writ
KAMLESH KUMAR v. STATE OF JHARKHAND
273
[H.L. GOKHALE, J.]
Petition Nos.95 & 112 of 2003 filed by Shri Kamlesh Kumar
A
and three others, all children of one Dr. K.M. Prasad who
worked earlier as the Director of Animal Husbandry department
in Government of Bihar. They are being prosecuted under the
provisions of Foreign Exchange Regulation Act, 1973 (in short
FERA), and those cases have been transferred to the Special
B
Judge hearing the Fodder scam cases. In the above referred
Criminal Writ Petitions they had challenged the transfer of those
cases to the Special Court by contending that the transfer order
was bj3d.on various gro1.1nds, the principal amongst them being
that the State Government had no jurisdiction to authorise the c
Special Judge to try these cases under FERA. Those Criminal
Writ Petitions have been rejected, and hence these Special
Leave Petitions (Criminal) have been filed.
Facts leading this Criminal Petition are as follows:-
2. The above referred Dr. K.M. Prasad, father of the
petitioners, was working earlier as the Director of Animal
Husbandry department, Government of Bihar. He is being
prosecuted along with some others by the Central Bureau of
Investigation (C.B.I.) in the Court of Special Judge at Ranchi
for conspiracy to defraud the State Government to the extent
of Rs.7,09,92,000/- during 1980-90 on the basis of fake
allotment letters purportedly issued by him for the purchase of
medicines. It is claimed that fake supplies were shown as made
by the suppliers, and the money withdrawn towards such fake
allotments was misappropriated by the accused persons.
3. During the course of investigation it was realized that
D
E
F
the amount involved was much more, i.e. Rs.19,81,66,460/-
approximately, and that the accused Dr. K.M. Prasad had
acquired huge movable as well as immovable assets in his own
G
name, and in the name of his children and others at different
places. The said Dr. K.M. Prasad and his children were also
therefore prosecuted in the case arising out of this
investigation, and charges have already been submitted by the
H
274
SUPREME COURT REPORTS
(2013] 14 S.C.R.
A CBI against them, and the cases are pending in the court of
Special Judge CBI at Ranchi.
4. It was further revealed during the course of investigation,
that Mr. Kamlesh Kumar and three others, children of Dr. K.M.
B Prasad, had received huge amounts of Foreign Exchange over
U.S. $3, 15,000 and British £1000. It was suspected that these
remittances were not actually genuine gifts as claimed by them,
but were amounts arranged by certain persons involved in the
animal husbandry scam in violation of the provisions of FERA.
C It was alleged that they had violated the provisions of Section
9(1) (a) and (b) and 64(2) of the FERA, and rendered
themselves liable to be prosecuted under Section 56 of
the said Act.
5. The Enforcement Director accordingly filed cases
D against the petitioners before the Chief Judicial Magistrate
Ranchi for taking cognizance under Section 56 of FERA. The
Enforcement Director however, realized that many of the
offenders in the FERA cases were also accused in the cases
which were pending before the Special Judge in the Fodder
E scam cases, and the documents relied upon and the witnesses
to be examined were common. The Director, therefore, wrote
to the State Government on 25.1.2002 seeking to have these
cases tried by the same court. Accordingly, the Law Secretary
of the Government of Jharkhand wrote to the Registrar General
F of the High Court on 2.3.2002 and on 25.4.2002. Thereafter,
the full Court of Jharkhand High Court passed a resolution on
25.4.2002, to empower the Special Judge, CBI Animal
Husbandry scam cases, to try the cases of FEMA, 1999. (This
is because in the meanwhile, from 1.6.2000, FERA had been
G replaced by the Foreign Exchange Management Act, 1999 -
FEMA for short). Accordingly a notification was issued by the
State of Jharkhand on 17.5.2002, empowering the Special
Judge CBI (AHO Scam cases) to try the cases under FEMA.
Pursuant to that notification, the Complaint filed on 23.5.2002
before the Chief Judicial Magistrate, Ranchi was transferred
H
KAMLESH KUMAR v. STATE OF JHARKHAND
275
[H.L. GOKHALE, J.]
by order dated 31.5.2002, for trial to the court of the Learned
A
Additional Judicial Commissioner cum Special Judge CBI
(AHO Scam cases) Ranchi.
6. This made the petitioners file the above referred
Criminal Writ Petitions to quash the notification dated
B
17.5.2002. The Learned Single Judge of the Jharkhand High
Court at Ranchi dismissed the said Writ Petitions by his
judgment and order dated 19.7.2012. It is this order which is
under challenge in the present Special Leave Petitions
(Criminal).
7. The notification issued by the Jharkhand Government
dated 17.5.2002 reads as follows:-
"JHARKHAND GOVERNMENT
LAW (JUSTICE), DEPARTMENT
c
NOT/FICA TION
D
RANCHI dated 17th Mav, 2002
Sr. Prabhu Tiwari, Special Judge, CBI (A.H.D Scam
cases), Ranchi, is being authorized for disposal of cases
of FEMA, 1979, in addition to his own works in the light of
E
letter No. 3449/APPTT dated 06/05/2002 of Jharkhand
High Court, Ranchi.
By the order of Governor
(Prashant Kumar) Secretary to Government
Law(Justice) Department
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Jharkhand, Ranchi
Memo No. 1-Alcourt-Gathan-10312001-1111 /J Ranchi
dated 17th May 2002
Copy to, Superintendent, State Press, P.ost-Doranda,
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Ranchi for publishing the same in the next state gazette.
Secretary to Government
Law (Justice) Department
Jharkhand, Ranchi"
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[2013] 14 S.C.R.
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This notification had been issued in the light of letter dated
6.5.2002 from the Registrar General of the High Court of
Jharkhand, which reads as follows:-
"Office:-501449
Res:-503024
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Fax No: 0651-501114
!BRAR HASSAN
No. 3449/APPT
Dated, Ranchi 0610512002
Registrar General High Court of Jharkhand, Ranchi
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To
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The Secretary to the Government
Law (Judi.) Department, Govt. of Jharkhand, Ranchi
Sir
With reference to your Letter No. 1/A/Court-Estab10312001 J 531 dated 0210312002, I am directed to say
that the Court has been pleased to resolve that Sri
Prabhu Tiwary, Special Judge, C.B.I. (AHO Scam cases)
at Ranchi be vested with the Powers to try cases under
Foreign Exchange Management Act, 1999.
I am further directed to say that since the vesting
of this power has to be effective before 31st May, 2002
immediate notification to this effect may be issued.
Yours faithfully
Registrar General
06. 05. 2002"
Submissions on behalf of the Petitioners:-
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8. It was firstly submitted on behalf of the petitioners that
the transfer of appellants' prosecution under FERA I FEMA
from the Magistrate's Court to the Court of the Special Judge
was unlawful, since the disputed transfer was being made to a
Court which had no jurisdiction to try the offence. In this context,
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KAMLESH KUMAR v. STATE OF JHARKHAND
277
[H.L. GOKHALE, J.]
it was submitted by learned senior counsel Mr. Shekhar
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Naphade appearing for the petitioners that for the offences for
which the petitioners were being prosecuted under Section 56
of FERA, the punishment did not exceed 7 years of
imprisonment. Since we are concerned with sub-section (1) of
Section 56, we may reproduce the said sub-section. We may
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note at this stage that though FERA came to be repealed and
replaced by FEMA with effect from 1.6.2000, in view of Section
49 (4) of FEMA, all offences committed under FERA continue
to be governed by the provisions of FERA, as if that Act had
not been repealed. This Section 56 (1) of FERA reads as c
follows:-
"56. Offences and prosecution- (1) Without
prejudice to any award of penalty by the adjudicating
officer under this Act, if any person contravenes any of
the provisions of this Act [other than section 13, clause
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(a) of sub-section (1) of [section 18, section 18A], clause
(a) of sub-section (1) of section 19, sub-section (2) of
section 44 and sections 57 and 58], or of any rule,
direction or order made thereunder he shall, upon
conviction by a court, be punishableE
(i) in the case of an offence the amount or value involved
in which exceeds one lakh of rupees, with imprisonment
for a term which shall not be less than six months, but
which may extend to seven years and with fine:
Provided that· the court may, for any adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than six
·months;
(ii) in any other case, with imprisonment for a term which
may extend to three years or with fine or with both."
9. It was then submitted that the punishment being less than
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[2013) 14 S.C.R.
A 7 years, as provided under the second entry of Part-II of First
Schedule to Cr.P.C., the offences which are punishable with
imprisonment for three years and upwards but not more than
seven years, and are cognizable and non-bailable offences, are
triable by the Magistrate of the first class. The State
B Government was therefore, not competent to transfer the
prosecution under Section 56 of FERA from the Court of Chief
Judicial Magistrate to the Court of the Special Judge. This is
because if so permitted it will result into denial of one right of
appeal to the petitioner.
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10. (i) Reliance was placed in support of this proposition
on the judgment of a Constitution Bench of this Court in the case
of A.R. Antulay v. R.S. Nayak and Anr. reported in 1988 (2)
sec 602, and particularly paragraphs 55, 56, 77, 78 and 91
thereof to submit that this transfer will reduce the right of
D appellants to appeal. The transfer of the prosecution against
the petitioner A.R. Antu lay, from the Court of the Special Judge
to the High Court of Bombay was held to be in violation of the
Fundamental Rights of the petitioner, and therefore, without .
jurisdiction and null and void. It was held that the right of the
E petitioner to prefer an appeal against the decision of the Special
Judge to the High Court was taken away by such a transfer.
(ii) Reliance was also placed in this behalf on a judgment
of a Division Bench of Delhi High Court in the case of AS.
F lmpex Limited & Ors. v. Delhi High Court & Ors. reported in
107 (2003) Delhi Law Times 734. In that matter, the Court was
concerned with· the administrative order passed by the High
Court to transfer cases filed under Section 138 of the
Negotiable Instrument Act, 1881, from the Courts of Magistrates
G to the Courts of Additional Sessions Judges. The High Court
relied upon AR. Antu/ay (supra) and held that to deal with the
dishonour of cheques, a special jurisdiction was conferred on
the Metropolitan Magistrates or Judicial Magistrates First Class,
to try the offences under Section 138 of the Negotiable
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KAMLESH KUMAR v. STATE OF JHARKHAND
279
[H.L. GOKHALE, J.]
Instrument Act 1881, and that jurisdiction could not be taken
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away by transferring these matters to the Sessions Courts.
11. It was also submitted, that the transfer of the cases
could not have been effected by the High Court without following
the procedure laid down under Section 407 of the Cr.P.C., and
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impugned orders of transfer of cases were therefore bad in law.
Reply on behalf of the Respondents:-
12. The arguments of the learned counsel for the petitioner
were countered by Mr. P.P. Malhotra, learned Additional c
Solicitor General appearing for the respondents. He firstly drew
our attention to the fact that in Antulay's case, as recorded in
paragraph 19 of that judgment, the petitioner was being
prosecuted under Section 7(1) of the Criminal Law Amendment
Act 1952, and Section 7(1) of the said Act specifically
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mandated that offences in such cases shall be tried by a
Special Judge only.
13. Mr. Malhotra submitted that when the statute made such
a specific provision, the prosecution could not be withdrawn
from the specified court and transferred even to the High Court.
It was in this context that Shri A.R. Antulay had suffered a
prejudice in as much as his right of appeal to the High Court
would get affected. In the present case, there was no such
specific provision that the offence shall be tried by a Magistrate
only. In support of his submissions Mr. Malhotra drew our
attention to a specific judgment of this Court in .Ranvir Yadav
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v. State of Bihar reported in 1995 (4) SCC 392 where the legal
proposition as stated in AR. Antulay (supra) came to be
explained in paragraph 14 thereof. In Ranvir Yadav (supra) this
Court was concerned with the administrative power of the High
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Court to transfer cases. While upholding the order of transfer,
this is what this Court observed in paragraph 14 thereof:-
"14. Coming now to A. R. Antu lay case we find that
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the principles of law laid down in the majority judgment,
to which Mr. Jethmalani drew our attention have no
manner of application herein. There questions arose as
to whether (i) the High Court could transfer a case triable
according to Criminal Law Amendment Act, 1952 ("1952
Act" for short) by a Special Court constituted thereunder
to another court, which was not a Special Court and (ii)
the earlier order of the Supreme Court transferring the
case pending before the Special Court to the High Court
was valid and proper. In answering both the questions in
the negative the learned Judges, expressing the majority
view, observed that (i) Section 7(1) of the 1952 Act
created a condition which was sine qua non for the trial
of offences under Section 6(1) of the said Act. The
condition was that notwithstanding anything
contained in the Code of Criminal Procedure or any
other law the said offence shall be triable by Special
Judges only. By express terms therefore it took away the
right of transfer of cases contained in the Code to any
other court which was not a Special Court and this was
notwithstanding anything contained in Sections 406 and
407 of the Code and (ii) the earlier order of the Supreme
Court transferring the case to the High Court was not
authorised by law, namely, Section 7(1) of the 1952 Act
and the Supreme Court, by its direction, could not confer
jurisdiction on the High Court of Bombay to try any case
for which it did not possess such jurisdiction under the
scheme of the 1952 Act. As in the present case the 5th
Court was competent under the Code to conduct the
sessions trial, the order of transfer conferring jurisdiction
on that court and the trial that followed cannot be said to
be bad in law."
(emphasis supplied)
14. One of the submissions for the petitioners was that
since the offences under Section 56(1) are punishable with
H
KAMLESH KUMAR v. STATE OF JHARKHAND
281
[H.L. GOKHALE, J.]
imprisonment for a term which may extend to seven years only,
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they are triable by Magistrates of. the First Class only. Mr.
Malhotra, pointed out that it would be so if the offences are
cognizable as per the second entry of Part-II of First Schedule
to Cr.P .C. In the present case, the offences were noncognizable under Section 56 of FERA/, and the petitioners were
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being prosecuted thereunder. Section 62 of the FERA had
made the offences punishable under Section 56 as noncognizable ones. Section 62 of FERA reads as follows:-
"62. Certain offences to be non-cognizableSubject to the provisions of section 45 and· C
notwithstanding anything contained in the [Code of
Criminal Procedure, 1973 (2 of 1974], an offence
punishable under section 56 shall be deemed to be noncognizable within the meaning of that Code."
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Consideration of rival submissions
15. It had been submitted on behalf of the petitioner that
one of the submissions accepted in AR. Antulay (supra) was
that his right to file an appeal would be affected. Mr. Malhotra
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pointed out that in the present case such a situation would not
arise. An appeal would lie certainly to the High Court against
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the decision of the Special Judge. It would always be argued
that if the prosecution was conducted before the Court of the
Magistrate, an appeal would lie to the Court of Sessions, and
then a revision would be available to the High Court. Thus by
transferring the case from the Court of Magistrate to a Sessions
Judge, the opportunity of the petitioner to avail of a revision
would be affected. Mr. Malhotra however pointed out that there
was no right to file a revision as such, as distinguished from
the right of filing an appeal to the High Court. The petitioner can
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not claim to have suffered any prejudice on that count, since
there was no vested right to file a revision. In support of this
proposition he relied upon the following paragraph from the
Constitution Bench judgment of this Court in Pranab Kumar
H
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[2013) 14 S.C.R.
A Mitra v. The State of West Bengal and Anr. reported in 1959
Supp 1 SCR 63 at page 70:-
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"In our opinion, in the absence of statutory provisions, in
terms applying to an application in revision, as there are
those in s. 431 in respect of criminal appeals, the High
Court has the power to pass such orders as to it may
seem fit and proper, in exercise of its revisional
jurisdiction vested in it by s. 439 of the Code. Indeed, it
is a discretionary power which has to be exercised in aid
of justice. Whether or not the High Court will exercise its
revisional jurisdiction in a given case, must depend upon
the facts and circumstances of that case. The revistonal
powers of the High Court vested in it by s. 439 of the
Code, read with s. 435, do not create any right in the
litigant, but only conserve the power of the High court to
see that justice is done in accordance with the recognised
rules of Criminal Jurisprudence, and that subordinate
criminal courts do not exceed their jurisdiction, or abuse
their powers vested in them by the Code. On the other
hand, as already indicate,d a right of appeal is a statutory
right which has got to be recognised by the courts, and
the right to appeal, where on exists, cannot be denied in
exercise of the discretionary power even of the High
Court ...... "
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16. It was further pointed out by Mr. Malhotra that this view
had been followed by the High Courts, and for reference he
referred to a Division Bench judgment of Bombay High Court
in Suraj Prakash Seth and another v. R.K. Gurnani and
another reported in 1975 Mh.L.J 588, where the proposition
G laid down in P.K. Mitra (supra) had been referred to in support.
The High Court observed in paragraph 15 which reads as
follows:-
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"15. . . .. The point which we wish to emphasise, however,
is that a party to a proceeding cannot as a matter of right
KAMLESH KUMAR v. STATE OF JHARKHAND
283
[H.L. GOKHALE, J.]
come to this Court for revision of any order passed by
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the lower Court, but it is a matter of practice that such
applications are entertained by this Court as a matter of
expediency. But no party has any vested right either in
procedure or in practice."
17. The First Schedule to Cr.P.C. deals with the
Classification of Offences. Part-1 thereof deals with the
offences under the Indian Penal Code, Part-II deals with
classification of offences against other laws, which would
include offences under laws such as FERA. The petitioners
were being prosecuted under Section 56 of FERA, wherein the
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maximum punishment th.at could be awarded was up to seven
years. The second entry of this Part-II laid down that such
offences were triable by Magistrate of first Class, provided
those offences were cognizable offences. As noted earlier,
Section 62 of FERA made the offence under Section 56 nonD
cognizable. Besides, Section 61 (1) of FERA stated that 'it
shall be lawful' for the Magistrate to pass the necessary
sentence under Section 56. It does not state that the Magistrate
alone is empowered to pass the necessary sentence, in which
case the proceeding cannot be transferred from his Court. This
provision is not like the one in the case of A.R. Antulay (supra)
where under Section 7(1) of Criminal Law Amendment 1952
Act, the offence was 'triable by special judge only'. In the
instant case it was merely lawful for the Magistrate to try the
offences under Section 61, but the Court of Magistrate was not
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a court of exclusive jurisdiction as in Antulay's case. The offence
was a non-cognizable one, and therefore it was not mandatory
that it ought to have been tried only by the Magistrate of the
First Class. Thus the petitioner could not claim that the
Magistrate had the special jurisdiction to try the offence, and
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that the State could not transfer the case to the Sessions Judge.
In view of what is stated above, it cannot be said that the
Magistrate's Court had an exclusive jurisdiction to try the cases
relating to violations of the provisions of FERA, and those cases
could not be transferred to the Special Judge. In the present
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(2013] 14 S.C.R.
A case the accused were common, many of the witnesses would
be. common, and so also their evidence. The administrative
power of the High Court in such a situation to effect transfer
has been upheld in the case of Ranvir Yadav (supra), and there
is no reason for this Court to take a different view in the facts
s of the present case.
18. The petitioner had relied upon the judgment of a
Division Bench of Delhi High Court in the case of A.S. lmpex
Limited (supra), on the question of transfer of a proceeding.
C Mr. Malhotra pointed out that although the judgment in Ranvir
Yadav (supra) was brought to the notice of the Division Bench
in that matter, the Division Bench had erroneously held that the
reliance thereon to be a 'misplaced' one, as can be seen from
the sentence at the end of paragraph 12 of that judgment. This
judgment has been distinguished and found to be not laying
D down a good law by another Division Bench of Delhi High Court
in Mahender Singh v. High Court of Delhi and Anr. reported
in 2009 (151) Company Cases 485 (Delhi). In that matter, the
Court was concerned with transfer of prosecutions under
Securities and Exchange Board Act, 1992 from the
E Magistrate's Court to Court of Sessions, and the High Court
has held it to be valid and permissible. The Division Bench in
Mahender Singh (supra) has in terms held that reliance on the
judgment in AR. Antu/ay (supra) to oppose such transfer was
of no help, and rightly so. There is no difficulty in stating that
F A. S. lmpex Limited (supra) does not lay down the correct
proposition of law.
19. The High Court does have the power to transfer the
cases and appeals under Section 407 of the Cr.P.C. which is
G essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays
down that, where it will tend to the general convenience of the
parties or witnesses, or where it was expedient for the ends of
justice, the High Court could transfer such a case for trial to a
Court of Sessions. That does not mean that the High Court
cannot transfer cases by exercising its administrative power of
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KAMLESH KUMAR v. STATE OF JHARKHAND
285
superintendence which is available to it under Article 227 of the A
Constitution of India. While repelling the objection to the
exercise of this power, this Court observed in paragraph 13 of
Ranvir Yadav (supra) as follows:-
"13. We are unable to share the above view of Mr.
8
Jethmalani.